Citation Nr: 0206868
Decision Date: 06/26/02 Archive Date: 07/03/02
DOCKET NO. 99-20 609 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to an increased evaluation for herniated nucleus
pulposus, currently evaluated as 30 percent disabling.
ATTORNEY FOR THE BOARD
M.G. Mazzucchelli, Counsel
INTRODUCTION
The veteran served on active duty from December 1983 to March
1987. This appeal arises from an August 1999 rating decision
of the Department of Veterans Affairs (VA), Montgomery,
Alabama, regional office (RO).
FINDINGS OF FACT
1. The RO has obtained all relevant evidence necessary for
an equitable disposition of the veteran's claim.
2. The veteran's service-connected lower back disability is
manifested by recurring attacks of back pain and neuropathy,
with moderate painful limitation of lumbar spine motion,
characteristic pain, and intermittent relief noted with rest;
the objective findings show no muscle spasm, loss of muscle
strength, or ankylosis, but there is diminished sensation
over the right great toe.
CONCLUSION OF LAW
The schedular criteria for an evaluation in excess of 30
percent (representing a 40 percent level of current
disability less the 10 percent level of disability considered
to have preexisted service) for herniated nucleus pulposus,
postoperative, L4-5, have not been met. 38 U.S.C.A. §§ 1155,
5107 (West 1991); 38 C.F.R. Part 4, including §§ 4.10, 4.22,
4.40, Codes 5286, 5293 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000
(VCAA), 38 U.S.C.A. § 5100 et seq.; see 66 Fed. Reg. 45,620-
45,632 (Aug. 29, 2001) (to be codified at 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a)). This law eliminated the concept
of a well-grounded claim, redefined the obligations of VA
with respect to the duty to assist, and imposed on VA certain
notification requirements.
First, VA has a duty to notify the veteran of any information
and evidence needed to substantiate and complete a claim.
38 U.S.C.A. §§ 5102 and 5103 (West Supp. 2001); 66 Fed. Reg.
45,630 (Aug. 29, 2001) (to be codified at 38 C.F.R.
§ 3.159(b)). The veteran was notified in the September 1999
statement of the case (SOC) of the criteria for an increased
evaluation for his service connected back disability. The
Board concludes that the discussion in the SOC adequately
informed the veteran of the evidence needed to substantiate
his claim and complied with VA's notification requirements.
Second, VA has a duty to assist the veteran in obtaining
evidence necessary to substantiate his claims. 38 U.S.C.A.
§ 5103A (West Supp. 2001); 66 Fed. Reg. 45,630-45,631 (Aug.
29, 2001) (to be codified at 38 C.F.R. § 3.159(c)). The
veteran has not identified any clinical records that are
missing and would be relevant to his claim. Per his request,
he was offered the opportunity to report for a
videoconference hearing before the Board in March 2002, but
he did not report. The veteran has been provided with a VA
examination to evaluate the nature and extent of his service
connected disability. The Board is aware that the most
recent VA examination of record was conducted in July 1999.
However, the veteran has not reported any treatment for his
service-connected disability since that VA examination, nor
has he contended that the disability has worsened since that
time. There is no indication that any relevant medical
records have not been obtained. Thus, the Board finds that
the veteran will not be prejudiced by rating his disability
on the examination of record.
Accordingly, the Board finds that VA has satisfied its duty
to notify and to assist and that under the circumstances of
this case, a remand would serve no useful purpose. See
Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict
adherence to requirements in the law does not dictate an
unquestioning, blind adherence in the face of overwhelming
evidence in support of the result in a particular case; such
adherence would result in unnecessarily imposing additional
burdens on VA with no benefit flowing to the veteran);
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which
would only result in unnecessarily imposing additional
burdens on VA with no benefit flowing to the veteran are to
be avoided).
The veteran was noted to have a herniated disk prior to his
entry into service. During service, he complained of back
pain, and he underwent a laminectomy and foraminotomies.
Service connection was granted for postoperative herniated
nucleus pulposus, with chronic back pain and radiculopathy,
in May 1987. A 30 percent evaluation was assigned from March
1987. The RO noted that this evaluation represented a 40
percent level of current disability less the 10 percent level
of disability considered to have preexisted service. See
38 C.F.R. § 4.22. This evaluation has been continued in
subsequent rating actions. The veteran contends that he is
entitled to a higher evaluation.
Service-connected disabilities are rated in accordance with a
schedule of ratings which are based on the average impairment
of earning capacity. Separate diagnostic codes identify the
various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Musculoskeletal disorders are rated with consideration of the
resulting functional impairment. 38 C.F.R. §§ 4.1, 4.10,
4.40, 4.42 (2001). See DeLuca v. Brown, 8 Vet. App. 202
(1995).
The veteran's lower back disability is evaluated under Code
5293. The current 40 percent baseline evaluation
contemplates a severe intervertebral disc syndrome with
intermittent relief. A 60 percent evaluation requires a
pronounced intervertebral disc syndrome, with persistent
symptoms compatible with sciatic neuropathy with
characteristic pain and demonstrable muscle spasm, absent
ankle jerk, or other neurological findings appropriate to the
site of the diseased disc, with little intermittent relief.
38 C.F.R. Part 4, Code 5293 (2001).
A 60 percent rating is also available under code 5286 where
the evidence demonstrates favorable ankylosis of the spine.
38 C.F.R. Part 4, Code 5286 (2001).
A VA orthopedic examination was conducted in July 1999. The
veteran reported constant pain in the low back and right leg.
He took Motrin but it did not help to relieve the pain. The
veteran reported flare-ups two to three times per week that
lasted from one to one and one-half days. Bending and
regular activities aggravated his pain, and rest decreased
it. He reported that he could not bend or sit for a long
time, and that during flare-ups he could not do any
activities. The veteran reported that he used a back brace.
On examination, lumbosacral spine flexion was to 60 degrees,
bilateral lateral flexion to 35 degrees, bilateral lateral
rotation to 35 degrees, and extension to 25 degrees. The
veteran expressed pain starting from 50 degrees of forward
flexion. There was mild tenderness over the right lower
paraspinals. There were no postural abnormalities or fixed
deformities. There was a long healed surgical scar in the
low back, and decreased sensation over the right great toe.
X-rays of the lumbosacral spine showed no degenerative joint
disease except for the finding of L5 laminectomy. The
diagnoses were chronic low back pain with the X-ray findings
of L5 laminectomy, and status post back surgery with L5
laminectomy.
It is apparent that the veteran has recurring attacks of back
pain and neuropathy, with characteristic pain, and
intermittent relief noted with rest. The objective findings
show no muscle spasm or loss of muscle strength, but there is
diminished sensation over the right great toe. The Board is
of the opinion that the recent findings demonstrate that the
veteran's service connected disability is appropriately rated
as severe under code section 5293. 38 C.F.R. Part 4, Code
5293 (2001).
In evaluating the veteran's claim, the Board has also
considered functional impairment of the back and lower
extremities due to pain, including the extent to which the
veteran's pain has been shown to adversely affect the ability
of the body to function under the ordinary conditions of
daily life, including employment. 38 C.F.R. § 4.10 (2001).
Functional loss contemplates the inability to perform the
normal working movements of the body with normal excursion,
strength, speed, coordination, and endurance, and must be
manifested by adequate evidence of disabling pathology,
especially when it is due to pain. 38 C.F.R. § 4.40 (2001).
See also DeLuca, supra. The objective findings do not show
any wasting or atrophy of the muscles which would provide
evidence of any disuse of the back or lower extremities. The
veteran's symptoms are not shown to be persistent with little
intermittent relief, and he has not alleged that he seeks any
treatment for his back disability other than his use of
Motrin.
While pain has been noted with motion, and the veteran has
reported problems with bending and other activities, any pain
affecting strength and motion is not shown to a degree beyond
that contemplated by the current 40 percent schedular
evaluation. Even taking into account the painful forward
flexion, the limitation of motion of the lumbar spine would
not exceed the moderate level under Code 5292, which merits a
20 percent evaluation, while the veteran's current evaluation
contemplates a severe level of limitation of motion under
that code section. 38 C.F.R. Part 4, Code 5292 (2001).
Additionally, the veteran is not entitled to a 60 percent
rating under code 5286 since favorable ankylosis of the spine
is not demonstrated. 38 C.F.R. Part 4, Code 5286 (2001).
The Board therefore concludes that the evaluation currently
assigned accurately reflects the degree of disability
produced as a result of the veteran's low back disability,
including complaints of pain. Since the weight of the
evidence for and against the claim is not in relative
equipoise, the reasonable doubt rule does not apply. 38
U.S.C.A. § 5107 (West 1991); 38 C.F.R. §§ 3.102, 4.3 (2001).
ORDER
The appeal is denied.
THOMAS J. DANNAHER
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.